Been there, tried that, so diversity gets benched

How quickly we abandoned the idea of a female nominee

RUTH MARCUS

Published 5:30 am, Thursday, November 3, 2005

WELL, that certainly mixes things up. The first Supreme Court vacancy went to a white Catholic judge who went to Harvard College and Harvard Law School. The second, chances are, will be filled by a white Catholic judge who went to college at Princeton and law school at Yale.

At this rate, a WASP male from Stanford is going to look like a diversity pick.

Now, I have nothing against white guys, Catholics, judges or Ivy Leaguers — or Stanford WASPs for that matter. And I thought the president made a mistake in nominating Harriet Miers to take the place of Justice Sandra Day O'Connor. The Miers pick represented the elevation of gender over quality; instead of adding to the sense that it is normal and appropriate to have women on the high court, the choice made it look as if presidents have to make sacrifices to scrounge up female nominees. Like almost every woman I know, of every ideological stripe, I was relieved when she withdrew.

But I also find it disturbing that the drive for diversity has been so quickly, so blithely abandoned: Been there, tried that, now we can pick whom we REALLY want. Diversity at the expense of quality is no virtue, but quality without diversity is nonetheless a vice.

To test this notion, just imagine an all-male, all-white Supreme Court. No president looking at a high court vacancy would consider that acceptable in this day and age, nor should he — or she. A court with a lone female justice — or, for that matter, a lone African-American justice, or no Hispanic justice at all — isn't all that much better.

Justice Antonin Scalia, in an interview last month with CNBC, dismissed the suggestion that having people of different races, religions and genders on the court has any effect on the outcome. "As far as the product of the court is concerned, it makes no difference at all," Scalia said. "I don't think there's ... a female legal answer to a question and a male legal answer to the same question. That's just silly."

Perhaps when it's phrased that way, but no one cries silly when it's suggested that having people on the court from different life experiences — politicians, perhaps, or private law practice — could add a valuable perspective to those who have spent most of their career on the bench.

Why, to take an example that Samuel Alito confronted as an appeals court judge, wouldn't a female judge bring a potentially different perspective to the question of whether married women can be required to notify their husbands before obtaining an abortion?

You don't have to be a woman to imagine the harm that could ensue from mandating such marital communications by a reluctant spouse. But it might help; see, e.g., the difference between Alito's clinical dissent on the issue and the Supreme Court plurality that included O'Connor.

And even Scalia acknowledges, albeit somewhat grudgingly, the symbolic importance of diversity. "I suppose, from the standpoint of ... having the whole country feel that the court is an institution that, in fact, represents the whole country, I think there's something to be said for having people of different backgrounds on it," he said.

I was on my way to law school when O'Connor was nominated in 1981, and the event seemed at once ridiculously tardy and deeply significant. By that time, women were no rarity in law schools, and it never occurred to me that my gender would present any handicap in either law or journalism. But it was also impossible not to notice that women were far less likely to speak up in class than men, and that it wasn't until the final semester of my final year that I had a female professor. O'Connor's addition to the high court signified both that change had come and that more was on the way.

Twelve years and a different career path later, on a sun-drenched June afternoon, I stood in the Rose Garden as President Bill Clinton announced his selection of Ruth Bader Ginsburg. Reporters aren't supposed to have feelings, but it was hard not to when Ginsburg, stepping to the microphone, said Clinton's choice of her to be the second female justice "contributes to the end of the days when women, at least half the talent pool in our society, appear in high places only as one-at-a-time performers."

I suspect that this, in the end, is what women in the workplace want — to be not solo representatives of their gender but simply part of the mix. Justice Ginsburg, unfortunately, may have been premature in proclaiming that that day had come.